Myths about the Filibuster

Brian Darling, Director, Government Relations, at Heritage Foundation, wrote about the history and purpose of the filibuster this week-“The Filibuster Protects the Rights of All Senators and the American People”
I spoke with Brian Darling, who is a Big Government contributor, after the event yesterday at Heritage Foundation. He later sent me his “List of Myths” that the democrat-media complex will try to push on the American public this week as they go for their power grab in the US Senate.
With his permission, I am posting those “myths” here.

Four Myths about the Filibuster
There are four myths that you will hear over and over again about the filibuster. Don’t believe the left when they claim that the filibuster is unconstitutional and was an accident of history. Furthermore don’t believe it when you hear that the Senate is not a continuing body and therefore the Senate can only change rules in the first day of a new Congress. The explicit words of the Constitution, the Senate’s written rules and the history of the Senate show that the filibuster was created by design, it is constitutional and the Senate is a continuous body.Myth: The Filibuster is Unconstitutional. Senator Tom Udall (D-NM) argues that “When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates.”Fact: The Filibuster is constitutional and efforts to restrict debate in the Senate may be unconstitutional. The Constitution empowers the House and Senate to establish rules of procedure. Article I, Section 5 of the Constitution states that “each house may determine the rule of its proceedings.” This provision in the Constitution empowers the Senate to make rules governing debate. The Senate in 1917 established the cloture rule requiring a 2/3rds vote of all Senators present and voting to shut down debate after years of not having a means to shut down debate. Senate Rule 22 today states “invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting.” The clear letter of the Senate’s rules mandate a supermajority vote to change the Senate’s rules.Myth: The Filibuster was created by accident. Sarah Binder, Senior Fellow of Governance Studies at the Brookings Institute testified before the Senate Rules Committee on April 22, 2010, “when we dig into the history of Congress, it seems that the filibuster was created by mistake.”Fact: On numerous occasions the early Senate rejected rules changes that would have limited debate. According to John Quincy Adam’s diary published in 1874, he wrote that in 1806, Vice-President Aaron Burr advised the Senate that the motion for the previous question was of no use and should be dropped. Burr thought it not necessary. In a 20 minute address to the Senate he spoke of his tenure as chair of the Senate. It was Burr’s view that the rule was not necessary for the Senate. This was a decision of the Senate and was made after a discussion of the issue by the Vice President. The opponents would like to characterize this as an oversight, yet future attempts to reinstate a move the previous question were resisted by Senators. According do Senator Robert C. Byrd’s “The Senate, 1789-1989, “Henry Clay, in 1841, proposed the introduction of the “previous question” but abandoned the idea in the face of opposition.” Byrd also wrote that “when Senator Stephen Douglas proposed permitting the use of the ‘previous question’ in 1850, the idea encountered substantial opposition and was dropped.” According to Byrd, “An effort to reinstitute the ‘previous question,’ on March 19, 1873, failed by a vote of 25-30. Byrd cited the following: “Between 1884 and 1890, fifteen different resolutions were offered to amend the rules of regarding limitations of debate, all of which failed of adoption.” It is clear from the early history of the Senate that the filibuster was not merely an accident of history, it was a design by early Senators.Myth: The Senate is not a continuing body.Fact: The Senate’s rules memorialize the fact that the Senate is a continuing body. According to Marty Gold and Dimple Gupta’s Harvard Law Review article titled “The Constitutional Option to Change Senate Rules and Procedures: Majoritarianism Means to Over Come the Filibuster” describing Senate Majority Leader Lyndon B. Johnson’s (D-TX) compromise proposal to make it easier to shut down debate and affirm that the Senate is a continuing body. Rule XXII would be amended to reduce the required vote for cloture to “two-thirds of the Senators present and voting,” and, in order to assuage the worries of Senators who opposed the constitutional option, a new clause would be added to the Senate Standing Rules holding, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” Our Founders set up the Senate with staggered 6 year terms and only 1/3rd of the Senate is up for election every two years. Our Founders set up the Senate to be a far different body than the House of Representatives. The length of terms and mandate that every state, regardless of size, gets two votes is evidence that our Founders wanted a Senate to be far different from the House. The facts are that the constitution authorizes the Senate’s rules. The Senate’s rules confirm that the Senate is a continuing body and that it takes a 2/3rds vote to shut off debate on a rules change. A strong case can be made that the actions of liberals in the Senate violates are an unconstitutional power grab.Myth: The Senate can only change rules on the first day of the new session by a simple majority.Fact: The Senate can never change rules with a simple majority vote. The Senate’s rules are clear that the Senate is a Continuing Body. As the Senate Web site explains: To foster values such as deliberation, reflection, continuity, and stability in the Senate, the framers made several important decisions. First, they set the senatorial term of office at six years even though the duration of a Congress is two years. The Senate, in brief, was to be a “continuing body” with one-third of its membership up for election at any one time.… “ According to Marty Gold’s Law review article Senator Leverett Saltonstall (R-MA) argued in 1957 “there never is a new Senate; there is merely a change in one third-of its members.” The Senate’s rule 5 states1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules. 2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules. The left claims that new rules are not adopted until the Senate operates under new rules. This claim simply is not true,